Lord Falconer’s current Assisted Dying Bill [HL Bill 6, 2014-15] received its first reading in the House of Lords on 5 June [HL Hansard 5 Jun 2014 Vol  754 Column 21] and is scheduled for its second reading on 18 July. It is identical to the Bill he presented on 15 May 2013 in the previous parliamentary session and its purpose is:

“[t]o enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes”

The Bill as presented to the Lords is available here and the Explanatory Notes here. At this early stage there is no other material concerning the Bill on the parliamentary website, although further supportive information has been posted by Dignity in Dying [1]: the case against the Bill is made by the Living and Dying Well, (LDW), campaign in ‘Assisted Dying and the Law, its analysis of the Suicide Act 1961 and of how it works in practice, and in Another ‘Assisted Dying’ Bill: Does it pass the public safety test? its critique of Lord Falconer’s identical 2013-14 Bill. To date, over 130 peers have indicated their intention to speak in the debate which is scheduled to commence at 10:00 am on Friday; and if the bill is read a second time Lord Falconer is to move that it be committed to a Committee of the whole House.

In March we considered the possible impact of Lord Falconer’s proposed Bill [2] and whether assisted suicide really had moved a significant step closer, as suggested by headlines the Daily Telegraph and the Daily Mail – which also speculated that this “… could be legal in months”.  At that time we concluded that assisted dying was “closer but not necessarily significantly closer” and “certainly not legal in months”; but noted “[a]s to the possible of success of an Assisted Suicide Bill, this will be strongly lobbied by both those for and against its introduction, but as has been commented elsewhere, the issue is unlikely to go away”.

Since March there have been a number of developments including: the Supreme Court’s judgment in R (Nicklinson) v Ministry of Justice [2014] UKSC 38 and the recent debate resulting from Lord Carey’s support for the Bill, countered by Justin Welby’s riposte, the substantial media comment on which was captured in the CofE Daily Digest on 13 July.

This post considers the legal issues raised by Lord Falconer’s present Bill and whether recent events are likely to influence the situation.

Background

There have been five earlier attempts to modify the provisions of the Suicide Act 1961:

• Lord Joffe’s Assisted Dying for the Terminally Ill Bill, introduced in 2004;
• two separate amendments by Patricia Hewitt and by Lord Falconer to the Coroners and Justice Bill 2008-09;
• Dame Joan Ruddock’s unsuccessfully attempt to secure a government consultation on putting the DPP Guidance on a statutory basis during a backbench debate on 27 March 2012; and
• Lord Falconer’s Assisted Dying Bill [HL] 2013-14 which did not proceed beyond its first reading on 15 May 2013.

Our earlier post considered the current legislation and case law, including the DPP Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide that was introduced following the House of Lords’ ruling in R (Purdy) v Director of Public Prosecutions & Ors [2009] EWCA Civ 92 which ordered the DPP to formulate an offence-specific policy setting out the factors he will consider when deciding whether or not to prosecute assisted suicide offences.

The DPP’s Policy was the subject of a short debate on 5 March, Hansard HL Deb 5 March 2014, vol 752, col 1409, at the conclusion of which the Minister of State, Ministry of Justice (Lord Faulks) (Con) stated, [our emphasis]:

“The Government’s view—one expressed by others standing at the Dispatch Box in the past few years—that any change to the law in this area is a matter for Parliament to determine as an issue of individual conscience, [i.e. a “free vote”].  In amending the Suicide Act by Section 59 of the Coroners and Justice Act 2009, Parliament confirmed that it should remain an offence to intentionally encourage or assist suicide or an attempted suicide;

[Lord Falconer’s Assisted Dying Bill] seeks to legalize in England and Wales assisted suicide for terminally ill mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on its specific provisions at, but not before, Second Reading…”..

Comment

Consideration of the Bill in the light of the intervening events since March raises three important questions:

• what are the respective roles of Parliament and the courts in determining the extent to which “physician-assisted suicide” should be permitted, if at all, under current or future legislation? [3]
• what is the Christian response to any such discussions? and
• to what extent are those advocating for, or against, aware of the implications of its provisions?

Clearly there are broader implications: the issue is relevant beyond England and Wales, as covered by the Bill; the response of other faiths is equally important and should be taken into consideration, although to date there has not been a similar degree of high-profile disagreement as that following Lord Carey’s statement; and the impact of such a Bill, if it finally becomes an Act, may or may not be tempered by amendments made during the parliamentary process. However, the present considerations relate essentially to the Bill to be discussed on Friday, and the debate catalysed by the intervention of the former Archbishop of Canterbury, however ill-timed and inappropriate this appeared to many at the time.

In his analysis of the Supreme Court’s judgement R (Nicklinson) v Ministry of Justice [2014] UKSC 38 Mark Elliott concludes:

“The Nicklinson case reveals very significant and entrenched divisions within the Supreme Court about judicial review of legislation in cases that raise sensitive ethical and moral questions. In turn, those divisions reflect deeper disagreements about the respective roles of the legislature and the judiciary and about how those two branches should relate to one another. To some extent, these disagreements are overlaid with, or viewed through the prism of, the HRA, at least as far as the more-interventionist judges are concerned”.

This theme was taken up and examined by Obiter J, who observed:

“It’s no good telling Parliament it must debate assisted suicide again. The law can never be settled until the courts give a clear view about whether Parliament’s policy (whatever that is) complies with human rights or not. The next time the Supreme Court is called on to make such a ruling, it should simply do so”.

The full text of both posts and the associated comments merits further consideration. Nevertheless, regardless of these concerns, Parliament will be giving the matter further consideration, possibly beyond Friday depending upon the vote. Although the Government has yet to reveal its hand, supra, this should not affect the outcome if MPs are to be given a free vote.

Writing in The Spectator blog, Freddy Gray suggests that “[b]y supporting assisted dying, Lord Carey has united Christians against it”, whereas “Archbishop Justin Welby, in contrast, has enjoyed widespread support for his eloquent piece in The Times this morning, in which he takes the opposite view to Carey. Welby states that a proper Christian understanding of compassion ought to discourage moral people from embracing the assisted dying bill”. Nevertheless, Lord Carey is not without like-thinking support, notably from Archbishop Desmond Tutu, and within the Church of England from the Bishop of Buckingham, Alan Wilson. although in a recent development, the Daily Telegraph reports that twenty-three leaders representing all the major faiths in Britain [4] have issued an unprecedented joint attack on Lord Falconer’s Bill: they condemn it as a “grave error” which would change British society forever, and far from bringing comfort to the dying, a change in the law would heap further distress and pressure on people at the most vulnerable time of their lives. They argue that enabling people to be actively involved in the deaths of others would leave them “colluding” in the idea that the person is of “no further value”. The full text of the statement is available here.

With regard to the details of the Bill itself, Lord Carey is unlikely to be alone in mistakenly assuming a direct link with the case of Tony Nicklinson and Paul Lamb, who would be in fact be excluded by the “terminally ill” provisions of clause 2.  A corollary of this is that if the Bill were to reach the statute book, there would then be further pressure to increase its ambit to encompass such cases; and that would introduce a further set of problematic considerations.  On the other hand, in the March debate in the Lords Lord Brown of Eaton-under-Heywood pointed out that in certain respects the current DPP guidelines go further than Lord Falconer’s proposed Bill as to what circumstances “physician-assisted suicide” would be acceptable, [Hansard HL Deb 5 March 2014, vol 752, col 1422].

Regardless of one’s views of the need for legislation in this area, Living and Dying Well’s analysis highlights a number of areas in which the Bill is not “fit for purpose” in its present form, including the fact that, other than criteria of eligibility for “assisted dying”, the Bill contains no safeguards to govern the assessment of requests for assisted suicide and that the critical aspects of “mental capacity” and “clear and settled intent” will only be determined after the Bill has been approved by Parliament and will be addressed through quasi-legislative Codes of Practice.

In summary, it is clear that the debate has progressed since March. But it remains uncertain whether or not assisted suicide has moved a significant step closer and it is still most unlikely that it  “… could be legal in months”.  We will follow proceedings in the Lords with interest and report on the outcome in a later post.

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[1] The “national campaign and membership organization with over 25,000 active supporters campaigning to legalise assisted dying, within upfront safeguards, for terminally ill, mentally competent adults.” The organization changed its name from the Voluntary Euthanasia Society in 2006.

[2] It had not at that time been presented to Parliament.

[3] The LDW document ‘Assisted Dying and the Law argues that the term ‘assisted dying’ has no meaning in English law, and a more accurate term (in the context of Lord Falconer’s Bills) is “physician-assisted suicide”.

[4] The Archbishop of Canterbury, the Most Rev Justin Welby; Cardinal Vincent Nichols, the leader of the Roman Catholic Church in England and Wales; the Chief Rabbi, Ephraim Mirvis; Dr Shuja Shafi, the secretary general of the Muslim Council of Britain; Ramesh Pattni, leader of the Hindu Forum of Britain; and Lord Singh, director of the Network of Sikh Organisations, as well as Buddhist, Jain and Zoroastrian leaders, and those of all the major Christian denominations including Methodists, Baptists, Pentecostals and free churches.